March 31, 2009

This is the first post in a series of short videos by New York attorney Elliot S. Schlissel, Esq, providing basic information about important aspects of Estate Planning. This informational video is entitled, “Who Needs a Will.”

Mr. Schlissel’s is a leading Elder Law and Wills Trusts and Estates attorney in the 5 Boroughs of New York, Nassau and Suffolk Counties so we are pleased to provide this information to Elliot Schlissel New York Law Blog readers.

March 31, 2009

Adjunct Law Prof Blog just posted that employers who hire an employee must verify their legal status to work and fill out the new I-9 form. Employers must have the employee sign the form within three days of starting work. It would be wise to see the form and instructions right away, if you haven’t already done so. Those items are available here.

March 30, 2009

Spurred on by financial abuse of the elderly, New York will change its laws with regard to executing a valid “Power of Attorney” (“POA”) document. The new law will be effective September 1, 2009, although POAs executed before that date in compliance with the old law will still be valid.

The following are some of the changes that attorneys must now consider when drafting and handling executions of General POA documents starting Sept. 1st, pursuant to the new New York General Obligations Law§5-1501:

The principal’s signature of the POA document must be both notarized and witnessed by two disinterested witnesses.

The agent must also sign the power of attorney and his/her signature must be notarized (although the signature does not have to take place at the same time as the principal’s signature).

If a principal intends to give the agent power to make gifts on his behalf to anyone he has not been accustomed to giving to or which exceed $500 per beneficiary per year, he must simultaneously execute a Statutory Major Gifts Rider (“SMGR”).

The statutory “Caution to the Principal” and “Important Information for the Agent” sections must be included.

These changes were originally set to become effective March 1, 2009, but Gov. Patterson agreed to sign off on an extension to September 1st, 2009 in order to allow attorneys to fully familiarize themselves with these sweeping changes. So give us a call if you are planning to execute a Will, Power of Attorney, Health Care Proxy, or other estate planning document.

Schepard and Liebmann’s main focus was on lawyers representing children and how the new rules would clarify an attorney’s guidelines with regard to when they may take a different position from that of their child client. They pointed out the current rule, as layed out by the Chief Judge in Administrative Order § 7.2, is substantially similar to the new Rule 1.14(b). The new rule states that “[w]hen the lawyer reasonably believes that the client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest, (then) the lawyer may take reasonably necessary protective action…” (emphasis and parentheses added) This “reasonably necessary protective action” includes substituting the law guardian’s judgment for the child’s judgment when those three requirements are met.

These rules set a high bar that a Law Guardian must meet before she may supplant her judgment for her child-client’s judgment. Schepard and Liebmann give the example of 10 year old Amkia P. (684 N.Y.S.2d 761 (Fam. Ct NY 1999)) who required medication for a life-threatening condition. She was in temporary Foster Care, but desired to return to live with her mother, who the Family Court believed would be not be capable of properly caring for her. Despite Amkia’s protestations, her Law Guardian advocated that she remain in temporary foster care.

Under the new rule, the Law Guardian in that case probably would have been allowed to substitute her judgmenet for the judgment of the client under those facts because Amkia appeared to be of diminished capacity (as a 10 year old), “at risk of substantial physical… harm,” and unable to take care of her own interests (again, she was only 10).

As Schepard and Liebmann point out, a Law Guardian in such a situation should think twice and three times before supplanting a client’s judgment with her own because a court will find that she should have advocated for home care to ensure that Amkia received the medicine she needed.

The new rules offer more guidance than attorneys may have had before, but they do not make these difficult judgment calls much easier.

March 26, 2009

In this post, I am speaking in my personal capacity, and not in my capacity as an employee of the law firm. I want to offer my theory regarding how the NY Cell Phone statute should be interpreted narrowly so as to allow one to use the speaker phone feature of a phone while holding it in the vicinity of the chin. And I would like to illustrate this theory through a personal anecdote.

Ever since I read New York’s anti-cell-phone-while-driving law, I had a hankering to get pulled over so that I could put my law-school-acquired statutory construction skills to good use. For good measure, I xeroxed a copy of the mobile phone statute and kept it with me in the car just in case.

My wish came true a few months ago. I was holding the phone in my hand. It was on the “speaker phone” setting and I was holding it an inch or two below my chin. I was pulled over by a nice Nassau County police officer. After surrendering my license and proof of insurance, he told me that he was going to give me a ticket for talking on the cell phone. I asking him if, since he’d already decided to give me the ticket anyway, I could explain to him why I thought I didn’t violate the statute. Out of a sense of amusement, I think, he gave me the go-ahead.

So I whipped out the copy of the New York VTL (Vehicle and Traffic Law), § 1225-c that I had prepared for just such a moment and I showed him the pertinent parts of the statute that you can read here:

§ 1225-c. Use of mobile telephones.
1. For purposes of this section, the following terms shall mean:
…
(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.
…
(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. (These words were just deleted by the NY State legislature on March 6th.)
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.
2.
(a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion…

At first, he argued, “Were you using a hands-free device or not?!”

I retorted that the statute does not require someone to use a hands-free device. Rather, in order to violate 2(a), the actual prohibition in the statute, two elements must be present for the purposes of my case. One has to be (1) “using” a mobile phone and (2) “engag[ing] in a call.” Subsection 1 of the statute defines “using” as “holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” And it defines “engage” as “talking into or listening on a hand-held mobile telephone.”

In my case, while the second element may have been present since I was talking to my father on the phone, the first element was absent. The phone was not “to, or in the immediate proximity of, [my] ear.” It was in the vicinity of my chin, but not my ear! One cannot violate a criminal statute unless the state can prove all elements of the violation, and because the first element was absent in my situation, I did not violate the statute.

The officer responded that what I was saying wasn’t true. It didn’t mean that it had to be by my ear. It just meant that I was in violation merely by holding the phone. In the alternative, he argued that the phone’s position below my chin should also be considered “in the vicinity of” my ear.

I responded that I didn’t think that could be true. If the legislature wanted to prohibit all calls where the cell phone is in one’s hand, it could have left out the definition of “using” in subsection 1, thus leaving only the definition of “engage in a call” as the only operative part of the statute. Then, the mere act of being on a phone call while driving would have been prohibited.

Alternatively, the legislature could have defined “using” as “holding the phone in the user’s hand” without any reference to proximity to the ear. Obviously, since they inserted the language about “proximity to the ear,” they intended only to prohibit calls where the phone is right by the driver’s ear. Not only that, but the statute requires the phone to be in the immediate proximity of the ear, and not merely in the “proximity” of the ear, thus requiring that the phone actually be extremely close to (even if not touching) the ear. Perhaps they even inserted this language specifically to indicate that they were permitting the use of cell phones with the “speaker phone” feature, like mine.

The officer vehemently disagreed with me but nevertheless said that he would not give me the ticket. (!!!) I think he realized that I might take this to trial and didn’t want to be cross-examined by this over-eager, Perry-Mason-Wanna-Be law student. Yay!

Incidentally, my fourth grade daughter made the policy argument that since the reason for the statute is to prevent distracted driving, that perhaps I shouldn’t even use the speaker phone while driving in the spirit of the reason for the statute, which is probably the biggest question on my statutory construction argument.

March 25, 2009

For 10-15 years, many of the firm’s traffic court clients, who receive insurance card tickets, have reported that the police have told them to send the court a copy of their insurance card to obtain a dismissal of the ticket. This is incorrect.

Courts will not accept a photocopy of one’s insurance card, even if it appears to be valid on the day the ticket was received, because insurance may have lapsed on the day the ticket was received.

Courts therefore require an original letter from the home office of the individual’s insurance company. Photocopied letters will not suffice. This letter must contain the following elements:

The letter must be on the insurance company’s letterhead.

It must be typed, not handwritten.

The letter must state the effective dates of the coverage period.

It must also state that no lapse occurred during the effective dates of the coverage period. Or, that if a lapse occurred, state the dates of the lapse in coverage.

The letter must specifically state that coverage was in full force and effect on ______________ (the date the ticket was received).

The letter must give a description of the insured vehicle including the: a) Year b) Make c) Model d) Color e) License Plate Number and f) Vehicle Identification Number (VIN) of the car.

Insurance Cards are not acceptable!

If you find yourself in criminal or traffic trouble, the cost of increased insurance, fines and State surcharges often exceed the cost of the legal fees necessary to retain representation in traffic court. So give us a call.

About Us

Established in 1978, The Law Office of Elliot S. Schlissel is a multi-service firm committed to client-focused, cost-effective legal services in the Five Boroughs of New York City, Nassau and Suffolk Counties. Our office services clients in the areas of Family, Criminal, Real Estate, Personal Injury, Elder Law, Bankruptcy, and Wills, Trusts and Estates.Mr. Schlissel graduated from SUNY Oswego in 1972 and attended the Hofstra and Buffalo law schools. He has been practicing matrimonial, personal injury, Bankruptcy, Wills, Trusts, & Estates, criminal defense, family law, elder law/Medicaid Planning, and general litigation for over 32 years. To reach Mr. Schlissel, or one of the other skilled attorneys at the firm, CLICK HERE.